H-1B in the crosshairs

With help from Marianne LeVine, Mel Leonor, Ian Kullgren and Timothy Noah

H-1B IN THE CROSSHAIRS: The Trump administration is sending strong signals that it will toughen regulatory enforcement of the H-1B visa program, which allows businesses to employ foreign technical workers on a temporary basis. Monday marked the start of H-1B “cap season,” wherein businesses scramble for the limited number of H-1B visas. The Justice Department and U.S. Citizenship and Immigration Services marked the occasion by announcing that they would investigate and prosecute vigorously any companies that broke the rules. In addition, USCIS issued a memo Friday that said “computer programmer” would no longer be considered automatically an H-1B “specialty occupation” absent additional information.

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The main losers appear to be outsourcing firms — which, you may recall, drew much criticism in recent years as vehicles by which companies like Southern California Edison and the Disney Corporation got around a statutory prohibition against replacing U.S. tech workers with H-1B guest workers. Outsourcing companies, many of them headquartered in India, have become the biggest users of the H-1B program; Tata Consultancy, Cognizant and Infosys were granted the most new H-1B visa petitions in 2014, according to a report by the Economic Policy Institute.

USCIS said it will focus work-site visits on companies that employ H-1B visa holders who work elsewhere, (i.e., outsourcers) and pay close attention to “H-1B dependent” businesses (again, outsourcers). A White House official told Morning Shift that the administration is considering additional ways that the president might use his authority to “rigorously enforce” H-1B regulations. According to a background document from the White House, USCIS will soon identify on its website companies trying to bring foreign workers into the U.S. The document also said USCIS will conduct “additional interviews and follow-up visits” with H-1B visa holders to ensure that employers are following the law. “I think we may see stricter adjudication standards for the cases that make it through the [H-1B visa lottery],” Bill Stock, president of the American Immigration Lawyers Association, told Morning Shift, “particularly for the companies that place employees at the worksites of other companies.”

TAX REFORM? DON’T FORGET RETIREMENT: Business groups and worker advocates will launch a coalition today to lobby Congress not to eliminate tax incentives for retirement savings. Such tax breaks may risk being targeted for elimination in order to pay for lower corporate tax rates under President Donald Trump’s forthcoming tax-reform plan. Will pension contributions no longer be tax-deductible? The so-called “Save Our Savings Coalition” is determined not to let that happen. Members include the American Benefits Council, the Financial Services Roundtable, the Investment Company Institute and New Economics for Women.

SPEAKING OF RETIREMENT: The Labor Department is expected this week to finalize its delay to the Obama administration’s fiduciary rule. The rule, which requires that broker dealers consider only their client’s best interest (and not commissions or fees) when providing retirement advice, was set to take effect next week. But DOL, under prodding from a White House memorandum, proposed delaying the rule’s applicability date by 60 days. The Office of Management and Budget received the final proposal for that delay last week.

HAPPENING TODAY:

EQUAL PAY DAY: According to an analysis from the Pew Research Center, women earned 83 percent of what men earned in 2015. The Pew analysis found the wage gap was smaller for younger workers: Women between the ages of 25 and 34 earned 90 cents for every dollar earned by their male counterparts in 2015.

To celebrate Equal Pay Day, Rep. Rosa DeLauro (D-Conn.) and Sen. Patty Murray (D-Wash.) will reintroduce legislation to close the gender wage gap. Under the bill, employers would have to show that the pay disparity between a man and a woman was because of job performance, not gender. In addition, the law would prohibit employers from retaliating against employees who shared salary information with coworkers.

TRUMP TO ADDRESS BUILDING TRADES: President Donald Trump will speak today at the North America’s Building Trades Unions’ legislative conference. Sean McGarvey, president of NABTU, met with Trump in January to talk about his infrastructure plan, but that plan was subsequently MIA in Trump’s “skinny budget.” (Last week Transportation Secretary Elaine Chao said a $1 trillion plan would be announced later this year.) Attendees today will be hungry for details. Trump’s speech is scheduled for noon at the Washington Hilton & Towers.

HEARING ON BORDER BARRIERS: The Senate Homeland Security and Governmental Affairs Committee will look at past efforts to secure the southwest border with fencing and other barriers. David Aguilar, former acting commissioner of U.S. Customs and Border Protection, will testify at the hearing, which takes place at 9:30 a.m. in Dirksen 342.

‘FIGHT FOR 15’ TEAMS UP WITH MOVEMENT FOR BLACK LIVES: Backers of the Fight for 15 and the Movement for Black Lives will rally together today in two dozen U.S. cities, according to organizers. In Memphis, protesters will gather at the Lorraine Motel, where Martin Luther King Jr. was assassinated 49 years ago today. A live stream will be available here.

SCOTUS: APPEALS COURTS AND EEOC SUBPOENAS: The Supreme Court ruled 7-1 Monday that appeals courts owe a level of deference to a lower court’s decision to enforce or quash a subpoena from the Equal Employment Opportunity Commission. The Ninth Circuit ruled previously that appeals courts could review agency subpoenas de novo (i.e., look at the case anew), but every other circuit reviews agency subpoenas deferentially (granting deference to the lower court). John Doran, a partner at the management side firm Sherman & Howard, told Morning Shift that “it’s hard to say what the long term implications are considering that every court of appeals in the nation other than the Ninth Circuit had already reached this conclusion.” But “for employers doing business in the Ninth Circuit, it’s certainly helpful.”

CONDE NAST LEVELS PROMPT-PAYMENT FEE: Conde Nast recently added a new clause to its freelance contracts, according to Fashionista.com, stipulating that if freelancers want to get paid quickly, they’ll have to settle for less. The “accelerated payment option,” the new vendor contract says, “will allow you to get paid more quickly” in exchange for “a small discount.” The arrangement calls to mind the old Borscht Belt joke in which three zaydes order a “glass tea” with lemon at a Lower East Side restaurant, the last adding, “and please, in a clean glass.” Ten minutes later the waiter returns and says, “Which one of you ordered the clean glass?”

The New York City Council passed legislation last year that requires any private-sector employer who pays an independent contractor $800 or more to provide a written contract that outlines expectations and compensation. The law also requires that the businesses compensate employees within 30 days of an agreed-upon date. Conde Nast told Fashionista it will still pay freelancers within 30 days, but that it wanted to give them more flexibility with the “industry-standard option.” More here.

TRUMP SIGNS CRA TO BLOCK RECORDKEEPING RULE: The president signed a Congressional Review Act resolution Monday that repeals a key part of a Labor Department rule that gives OSHA the authority to enforce recordkeeping requirements for workplace injuries and illnesses. Reps. Virginia Foxx (R-N.C.), chairwoman of the House Committee on Education and the Workforce, and Bradley Byrne (R-Ala.), chairman of the Subcommittee on Workforce Protections, took a final swing at the regulation on Monday. “This OSHA power grab was completely unlawful,” Byrne said in a written statement. “It would have done nothing to improve workplace safety while creating significant regulatory confusion for small businesses.”

D.C. WORKERS SETTLE DUES CHECKOFF FIGHT: Security guards at the Ronald Reagan Building and the Union of Security, Police and Fire Professionals settled a dispute before the National Labor Relations Board over union dues collected after workers revoked their dues-checkoff authorizations. The workers, backed by the National Right to Work Foundation, filed an unfair labor practice charge against the union contending that the union continued to collect dues after it was deauthorized and after workers had filed to halt automatic deductions from their paychecks. The settlement agreement calls for the union to return any dues collected in this fashion. It also includes a non-admittance clause, meaning the union doesn’t admit to violating labor law. Read the agreement here.

BIG BROTHER IS WATCHING: The NLRB ordered Bridgestone Tires to stop recording employees without union approval. The decision, delivered yesterday, ordered the Bridgestone tire plant in La Vergne, Tenn., to shut off cameras that were “unilaterally” activated last year. Read the order here.

PLENTY OF STEM JOBS FOR EVERYONE? A report released last week from the pro-immigration New American Economy found that for every unemployed STEM worker in 2016, there were 13 STEM job postings online, “or roughly 3 million more jobs than the number of available, trained professionals who could potentially fill them.” The data on job postings came from the labor market analytics firm Burning Glass Technologies, and showed that STEM job postings far outnumbered unemployed STEM workers in states such as North Dakota, South Dakota, Iowa, and Nebraska.

Not everyone agrees with those findings. The Economic Policy Institute showed Morning Shift a draft version of an H-1B fact sheet it was preparing. “The IT industry has layoffs of 200,000 - 300,000 workers each year for the past few years, with announced layoffs at a rate four times greater than other industries,” the fact sheet said. “Industry counts of job openings or ads for vacancy postings are misconstrued to indicate the number of new workers needed.” EPI said the studies arguing a shortage of STEM workers tend to use private surveys, whereas government statistics tell a different story: “The government's job openings survey (JOLTS) does not break down the data by occupation, but within the industries where I.T. workers are employed — these data show no unusual unmet demand.”

WORKPLACE SAFETY REGS TAKE EFFECT IN CALIFORNIA: Health care facilities in California must now comply with new regulations concerning workplace violence that went into effect April 1. The rule calls on employers at health care facilities to create violence prevention plans; train workers on how to avoid violent incidents; and keep detailed logs of such incidents. The United Nurses Associations of California, an affiliate of the Union of Health Care Professionals, pushed for the new regulations for years. The Government Accountability Office agreed in a March 2016 report that found health care workers were at higher risk than workers in other industries of experiencing workplace violence. Find the new regs here.

SPEAKING OF CALIFORNIA: The state senate passed a package of bills Monday evening would create a $12 million legal defense program for immigrants facing deportation and make California a so-called “sanctuary state,” preventing local authorites to use resources for immigration enforcement. The bill, now headed to the California Assembly, “would keep state and local law enforcement agencies from using resources to investigate, detain, report or arrest people for the purposes of immigration enforcement,” the LA Times writes. More here.

COURT SIDES WITH SEX DISCRIMINATION PLAINTIFFS IN IOWA: A federal court has ruled in favor of three women workers at a furniture company in Iowa who sued their employer over allegations that they were paid less than their male counterparts. See the decision here.

IDAHO TOWN DODGES RURAL DECLINE: Twin Falls, Idaho, shatters the stereotype that all rural towns are in decline. New Chobani yogurt and Clif Bar plants created scores of new jobs there. “The surge … underscores the deeply uneven world of what economists call non-metro America, where the recession never ended in some places and is barely remembered in others.” More from the New York Times here.

COFFEE BREAK

— “A laborers union has sent hundreds of letters of support for the Atlantic Coast Pipeline to Virginia’s senators,” from The Associated Press

—“Skilled labor shortage continues in Houston, but future may look brighter,” from Houston Public Media

—“Tensions flare over immigration enforcement between local police, Trump's DHS,” from ABC News

About The Author : Ted Hesson

Ted Hesson is an employment and immigration reporter with POLITICO Pro and the author of the “Morning Shift” newsletter.

Prior to joining POLITICO in October 2016, Hesson spent more than a decade as a writer and editor with a focus on immigration policy. His work has appeared in National Journal, The Atlantic and VICE, among other outlets.

From 2012 to 2015, he worked as immigration editor at Fusion, a joint venture of ABC News and Univision.

Hesson holds a master’s degree from the Columbia University Graduate School of Journalism and a bachelor’s degree from Boston College.

Born and raised in Philadelphia, he lived in New York City before relocating to Washington, D.C.

In his free time, he enjoys playing guitar, listening to podcasts and practicing Spanish.